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EXHIBIT 10.2
ADMINISTRATION AGREEMENT
AMONG
ORIX CREDIT ALLIANCE RECEIVABLES TRUST 2000-A,
AS ISSUER,
ORIX CREDIT ALLIANCE, INC.,
AS ADMINISTRATOR
ORIX CREDIT ALLIANCE RECEIVABLES CORPORATION III,
AS TRUST DEPOSITOR,
AND
▇▇▇▇▇▇ TRUST AND SAVINGS BANK,
AS INDENTURE TRUSTEE
DATED AS OF FEBRUARY , 2000
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TABLE OF CONTENTS
Page
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Section 1. Duties of the Administrator...............................................2
Section 2. Records...................................................................8
Section 3. Compensation..............................................................8
Section 4. Additional Information to be Furnished to the Issuer......................9
Section 5. Independence of the Administrator.........................................9
Section 6. No Joint Venture..........................................................9
Section 7. Other Activities of Administrator.........................................9
Section 8. Term of Agreement; Resignation and Removal of Administrator...............9
Section 9. Action upon Termination, Resignation or Removal...........................11
Section 10. Notices...................................................................11
Section 11. Amendments................................................................12
Section 12. Successors and Assigns....................................................13
Section 13. Governing Law, Jury Waiver and No Petition................................13
Section 14. Headings..................................................................14
Section 15. Counterparts..............................................................14
Section 16. Severability..............................................................14
Section 17. Not Applicable to OCAI in Other Capacities................................14
Section 18. Limitation of Liability of Owner Trustee and Indenture Trustee............14
Section 19. Third-party Beneficiary...................................................15
Section 20. Survivability.............................................................15
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EXHIBITS
EXHIBIT A - Limited Power of Attorney..........................................................A-1
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This ADMINISTRATION AGREEMENT, dated as of February , 2000, is among ORIX
CREDIT ALLIANCE RECEIVABLES TRUST 2000-A (the "Issuer"), ORIX CREDIT ALLIANCE,
INC. ( together with its successors and assigns "OCAI") in its capacity as
administrator (the "Administrator"), ORIX CREDIT ALLIANCE RECEIVABLES
CORPORATION III (together with its successors and assigns, the "Trust
Depositor") and ▇▇▇▇▇▇ TRUST AND SAVINGS BANK, not in its individual capacity
but solely as Indenture Trustee (together with its successors and assigns, the
"Indenture Trustee").
W I T N E S S E T H:
WHEREAS, the Issuer is issuing Class A-1 Receivable-Backed Notes, Class A-2
Receivable-Backed Notes, Class A-3 Receivable-Backed Notes, Class A-4
Receivable-Backed Notes, Class B Receivable-Backed Notes, and Class C
Receivable-Backed Notes (collectively, the "Notes") pursuant to the Indenture,
dated as of the date hereof (the "Indenture"), between the Issuer and the
Indenture Trustee (capitalized terms used herein that are not otherwise defined
shall have the meanings ascribed thereto in the Transfer and Servicing Agreement
as defined herein or in the Indenture);
WHEREAS, the Issuer has entered into certain agreements in connection with
the issuance of the Notes and of certain beneficial ownership interests of the
Issuer, including (i) a Transfer and Servicing Agreement, dated as of the date
hereof (the "Transfer and Servicing Agreement"), among the Issuer, the Indenture
Trustee, the Trust Depositor, and OCAI, as Originator and Servicer thereunder,
and (ii) the Indenture, and (iii) the other Transaction Documents;
WHEREAS, pursuant to the Transaction Documents, the Issuer and the Owner
Trustee are required to perform certain duties in connection with (i) the Notes
and the Collateral therefor pledged pursuant to the Indenture and (ii) the
beneficial ownership interests in the Issuer evidenced by the Certificates (the
registered holders of such interests being referred to herein as the "Owners");
WHEREAS, the Issuer and the Owner Trustee desire to have the Administrator
perform certain of the duties of the Issuer and the Owner Trustee referred to in
the preceding clause and to provide such additional services consistent with the
terms of this Agreement and the Transaction Documents as the Issuer and the
Owner Trustee may from time to time request; and
WHEREAS, the Administrator has the capacity to provide the services
required hereby and is willing to perform such services for the Issuer and the
Owner Trustee on the terms set forth herein;
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NOW, THEREAFTER, in consideration of the mutual covenants contained herein,
and other good and valuable consideration, the receipt and adequacy of which are
hereby acknowledged, the parties hereto agree as follows:
SECTION 1. DUTIES OF THE ADMINISTRATOR.
(a) DUTIES WITH RESPECT TO THE INDENTURE.
(i) The Administrator agrees to perform all its duties as
Administrator and the duties of the Issuer and the Owner Trustee under the
Transaction Documents. In addition, the Administrator shall consult with
the Owner Trustee regarding the duties of the Issuer or the Owner Trustee
under the Indenture. The Administrator shall monitor the performance of the
Issuer and shall advise the Owner Trustee when action is necessary to
comply with the respective duties of the Issuer and the Owner Trustee under
the Indenture. The Administrator shall prepare for execution by the Issuer
or shall cause the preparation by other appropriate persons of all such
documents, reports, filings, instruments, certificates and opinions that it
shall be the duty of the Issuer or the Owner Trustee to prepare, file or
deliver pursuant to the Indenture. In furtherance of the foregoing, the
Administrator shall take all appropriate action that the Issuer or the
Owner Trustee is required to take pursuant to the Indenture including,
without limitation, such of the foregoing as are required with respect to
the following matters under the Indenture (references are to Sections of
the Indenture):
(A) the duty to cause the Note Register to be kept and to give the
Indenture Trustee notice of any appointment of a new Note Registrar and the
location, or change in location, of the Note Register (Section 2.04);
(B) the notification of Noteholders of the final principal payment on
their Notes (Section 2.07(b));
(C) the preparation of or obtaining of the documents and instruments
required for execution and authentication of the Notes and delivery of the
same to the Indenture Trustee (Section 2.02);
(D) the preparation, obtaining or filing of the instruments, opinions
and certificates and other documents required for the release of Collateral
(Section 2.12);
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(E) the maintenance of an office in Chicago, Illinois, or the
appointment of the Indenture Trustee as its agent therefor, for
registration of transfer or exchange of Notes (Section 3.02);
(F) the duty to cause newly appointed Paying Agents, if any, to
deliver to the Indenture Trustee the instrument specified in the Indenture
regarding funds held in trust (Section 3.03);
(G) the direction to the Indenture Trustee to deposit monies with
Paying Agents, if any, other than the Indenture Trustee (Section 3.03);
(H) the obtaining and preservation of the Issuer's qualification to do
business in each jurisdiction in which such qualification is or shall be
necessary to protect the validity and enforceability of the Indenture, the
Notes, the collateral and each other instrument and agreement included in
the Collateral (Section 3.04);
(I) the preparation of all supplements and amendments to the Indenture
and all financing statements, continuation statements, instruments of
further assurance and other instruments and the taking of such other action
as is necessary or advisable to protect the Collateral other than as
prepared by the Servicer (Section 3.05);
(J) the delivery of certain statements as to compliance with the
Indenture (Sections 3.09);
(K) the identification to the Indenture Trustee in an Officer's
Certificate of a Person with whom the Issuer has contracted to perform its
duties under the Indenture (Section 3.07(b));
(L) the notification of the Indenture Trustee and each Rating Agency
of a Servicer Default under the Transfer and Servicing Agreement;
(M) the preparation and obtaining of documents and instruments
required for the release of the Issuer from its obligations under the
Indenture (Section 3.10(b));
(N) the monitoring of the Issuer's obligations as to the satisfaction
and discharge of the Indenture and the preparation of an
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Officer's Certificate and the obtaining of the Opinion of Counsel and the
Independent Certificate relating thereto (Section 4.01);
(O) the compliance with any written directive of the Indenture Trustee
with respect to the sale of the Collateral in a commercially reasonable
manner if an Event of Default shall have occurred and be continuing
(Section 5.04);
(P) the preparation and delivery of notice to Noteholders of the
removal of the Indenture Trustee and the appointment of a successor
Indenture Trustee (Section 6.08);
(Q) the preparation of any written instruments required to confirm
more fully the authority of any co-trustee or separate trustee and any
written instruments necessary in connection with the resignation or removal
of the Indenture Trustee or any co-trustee or separate trustee (Sections
6.08 and 6.10);
(R) the furnishing of the Indenture Trustee with the names and
addresses of Noteholders during any period when the Indenture Trustee is
not the Note Registrar (Section 7.01);
(S) the opening of one or more accounts in the Indenture Trustee's
name, the preparation and delivery of Issuer Orders, Officer's Certificates
and Opinions of Counsel and all other actions necessary with respect to
investment and reinvestment of funds in the Trust Accounts (Sections 8.02
and 8.03);
(T) the preparation of an Issuer Request and Officer's Certificate and
the obtaining of an Opinion of Counsel and Independent Certificates, if
necessary, for the release of the Collateral (Sections 8.04 and 8.05);
(U) the preparation of Issuer Orders and the obtaining of Opinions of
Counsel with respect to the execution of supplemental indentures and the
mailing to the Noteholders of notices with respect to such supplemental
indentures (Sections 9.01, 9.02 and 9.03);
(V) the execution and delivery of new Notes conforming to any
supplemental indenture (Section 9.06);
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(W) the duty to notify Noteholders of redemption of the Notes or to
cause the Indenture Trustee to provide such notification (Section 10.02);
(X) the preparation and delivery of all Officer's Certificates,
Opinions of Counsel and Independent Certificates with respect to any
requests by the Issuer to the Indenture Trustee to take any action under
the Indenture (Section 11.01(a));
(Y) the preparation and delivery of Officer's Certificates and the
obtaining of Independent Certificates, if necessary, for the release of
property from the lien of the Indenture (Section 11.01(b));
(Z) the notification of the Rating Agencies, upon the failure of the
Issuer, the Owner Trustee or the Indenture Trustee to provide notification
as required under the Transaction Documents;
(AA) the preparation and delivery to Noteholders and the Indenture
Trustee of any agreements with respect to alternate payment and notice
provisions (Section 11.06); and
(BB) the recording of the Indenture, if applicable (Section 11.14).
(ii) The Administrator will, except as paid pursuant to or otherwise
expressly provided in the Indenture or the Transfer and Servicing
Agreement:
(A) pay the Indenture Trustee's fees and reimburse the Indenture
Trustee upon its request for all reasonable expenses, disbursements and
advances incurred or made by the Indenture Trustee in accordance with any
provision of the Indenture (including the reasonable compensation, expenses
and disbursements of its agents and counsel), except any such expense,
disbursement or advance as may be attributable to its negligence or bad
faith;
(B) indemnify the Indenture Trustee and its agents for, and hold them
harmless against, any loss, liability or expense incurred without
negligence or bad faith on their part, arising out of or in connection with
the acceptance or administration of the transactions contemplated by the
Transaction Documents, including the reasonable costs and expenses of
defending themselves against any claim or liability in connection with the
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exercise or performance of any of their powers or duties under the
Transaction Documents; and
(C) pay the Owner Trustee's fees and reimburse the Owner Trustee upon
its request for all reasonable expenses, disbursements and advances
incurred or made by the Owner Trustee in accordance with the Transaction
Documents and indemnify the Owner Trustee and its agents for, and hold them
harmless against, any loss, liability or expense incurred without
negligence or bad faith on their part, arising out of or in connection with
the acceptance or administration of the transactions contemplated by the
Trust Agreement, including the reasonable costs and expenses of defending
themselves against any claim or liability in connection with the exercise
or performance of any of their powers or duties under the Trust Agreement
(and including without limitation, an indemnity as described above with
respect to the Trust Depositor's obligations in favor of the Owner Trustee
under Section 8.02 of the Trust Agreement).
(b) ADDITIONAL DUTIES.
(i) In addition to the duties set forth in Section 1(a), the
Administrator shall perform such calculations and shall prepare or shall
cause the preparation by other appropriate persons of, and shall execute on
behalf of the Issuer or the Owner Trustee, all such documents, reports,
filings, instruments, investment instructions, certificates and opinions
that the Issuer or the Owner Trustee is required to prepare, file or
deliver pursuant to the Transaction Documents or under Section 5.05 of the
Trust Agreement, and at the request of the Owner Trustee shall take all
appropriate action that the Issuer or the Owner Trustee is required to take
pursuant to the Transaction Documents. In furtherance thereof, the Owner
Trustee shall, on behalf of the Issuer, execute and deliver to the
Administrator and to each successor Administrator appointed pursuant to the
terms hereof, one or more powers of attorney substantially in the form of
Exhibit A hereto, appointing the Administrator the attorney-in-fact of the
Issuer for the purpose of executing on behalf of the Owner Trustee and the
Issuer all such documents, reports, filings, instruments, certificates and
opinions. Subject to Section 5, and in accordance with the directions of
the Issuer, the Administrator shall administer, perform or supervise the
performance of such other activities in connection with the Collateral
(including the Transaction Documents) as are not covered by any of the
foregoing provisions and as are expressly requested by the Issuer and are
reasonably within the capability of the Administrator.
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(ii) Notwithstanding anything in this Agreement or the Transaction
Documents to the contrary, the Administrator shall be responsible for
promptly notifying the Owner Trustee in the event that any withholding tax
is imposed on the Trust's payments (or allocations of income) to an Owner
as contemplated in Section 5.02(c) of the Trust Agreement. Any such notice
shall specify the amount of any withholding tax required to be withheld by
the Owner Trustee pursuant to such provision.
(iii) Notwithstanding anything in this Agreement or the Transaction
Documents to the contrary, the Administrator shall be responsible for
performance of the duties of the Owner Trustee set forth in Section
5.05(a), (b), (c) and (d), the penultimate sentence of Section 5.05 and
Section 5.06(a) of the Trust Agreement with respect to, among other things,
accounting and reports to Owners; provided, however, that the Owner Trustee
shall retain responsibility for the distribution of information forms
necessary to enable each Owner to prepare its federal and state income tax
returns.
(iv) The Administrator shall satisfy its obligations with respect to
clauses (ii) and (iii) above by retaining, at the expense of the Trust
payable by the Administrator, a firm of independent public accountants (the
"Accountants") acceptable to the Owner Trustee, which shall perform the
obligations of the Administrator thereunder.
(v) The Administrator shall perform the duties of the Administrator
specified in Sections 6.02, 9.01(d) and 10.02 of the Trust Agreement
required to be performed in connection with the filing of claims, the
termination of the Trust and the resignation or removal of the Owner
Trustee, and any other duties expressly required to be performed by the
Administrator under the Trust Agreement.
(vi) In carrying out the foregoing duties or any of its other
obligations under this Agreement, the Administrator may enter into
transactions or otherwise deal with any of its Affiliates; provided,
however, that the terms of any such transactions or dealings shall be in
accordance with any directions received from the Issuer and shall be, in
the Administrator's opinion, no less favorable to the Issuer than would be
available from unaffiliated parties.
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(c) NON-MINISTERIAL MATTERS.
(i) With respect to matters that in the reasonable judgment of the
Administrator are non-ministerial, the Administrator shall not take any
action unless within a reasonable time before the taking of such action,
the Administrator shall have notified the Owner Trustee of the proposed
action and the Owner Trustee shall not have withheld consent or provided an
alternative direction. For the purpose of the preceding sentence,
"non-ministerial matters" shall include, without limitation:
(A) the amendment of or any supplement to the Indenture;
(B) the initiation of any claim or lawsuit by the Issuer and the
compromise of any action, claim or lawsuit brought by or against the Issuer
(other than in connection with the collection of the Contracts);
(C) the amendment, change or modification of any other Transaction
Documents;
(D) the appointment of successor Note Registrars, successor Paying
Agents and successor Indenture Trustees pursuant to the Indenture or the
appointment of successor Administrators or a successor Servicer, or the
consent to the assignment by the Note Registrar, Paying Agent or Indenture
Trustee of its obligations under the Indenture; and
(E) the removal of the Indenture Trustee.
(ii) Notwithstanding anything to the contrary in this Agreement, the
Administrator shall not be obligated to, and shall not, (A) make any
payments to the Noteholders under the Transaction Documents, (B) sell the
Collateral otherwise than pursuant to Section 1(a)(i)(O) above and clause
(iv) of Section 5.04 of the Indenture, (C) take any other action that the
Issuer directs the Administrator not to take on its behalf or (D) take any
other action which may be construed as having the effect of varying the
investment of the Holders.
SECTION 2. RECORDS. The Administrator shall maintain appropriate books of
account and records relating to services performed hereunder, which books of
account and records shall be accessible for inspection by the Indenture Trustee,
the Issuer and the Owner Trustee at any time during normal business hours.
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SECTION 3. COMPENSATION. As compensation for the performance of the
Administrator's obligations under this Agreement and as reimbursement for its
expenses related thereto, the Administrator shall be entitled to a monthly fee
which shall be solely an obligation of the Servicer as contemplated in Section
5.19 of the Transfer and Servicing Agreement and which shall be in an amount as
shall be agreeable to the Trust Depositor and the Administrator.
SECTION 4. ADDITIONAL INFORMATION TO BE FURNISHED TO THE ISSUER. The
Administrator shall furnish to the Issuer from time to time such additional
information regarding the Collateral as the Issuer shall reasonably request.
SECTION 5. INDEPENDENCE OF THE ADMINISTRATOR. For all purposes of this
Agreement, the Administrator shall be an independent contractor and shall not be
subject to the supervision of the Issuer or the Owner Trustee with respect to
the manner in which it accomplishes the performance of its obligations
hereunder. Unless expressly authorized by the Issuer, the Administrator shall
have no authority to act for or represent the Issuer or the Owner Trustee in any
way and shall not otherwise be deemed an agent of the Issuer or the Owner
Trustee.
SECTION 6. NO JOINT VENTURE. Nothing contained in this Agreement (i) shall
constitute the Administrator and either of the Issuer or the Owner Trustee as
members of any partnership, joint venture, association, syndicate,
unincorporated business or other separate entity, (ii) shall be construed to
impose any liability as such on any of them or (iii) shall be deemed to confer
on any of them any express, implied or apparent authority to incur any
obligation or liability on behalf of the others.
SECTION 7. OTHER ACTIVITIES OF ADMINISTRATOR. Nothing herein shall prevent
the Administrator or its Affiliates from engaging in other business or, in its
sole discretion, from acting in a similar capacity as an administrator for any
other Person or entity even though such person or entity may engage in business
activities similar to those of the Issuer, the Owner Trustee or the Indenture
Trustee.
SECTION 8. TERM OF AGREEMENT; RESIGNATION AND REMOVAL OF ADMINISTRATOR.
This Agreement shall continue in force until the termination of the Issuer, upon
which event this Agreement shall automatically terminate.
(a) Subject to Section 8(d) and Section 8(e),
the Administrator may resign its duties
hereunder by providing the Issuer with at
least 60 days' prior written notice.
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(b) Subject to Section 8(d) and Section 8(e),
the Issuer may remove the Administrator
without cause by providing the Administrator
with at least 60 days' prior written notice.
(c) Subject to Section 8(d) and Section 8(e), at
the sole option of the Issuer, the
Administrator may be removed immediately
upon written notice of termination from the
Issuer to the Administrator if any of the
following events shall occur:
(i) the Administrator shall default in the
performance of any of its duties under
this Agreement and, after notice of
such default, shall not cure such
default within ten days (or, if such
default cannot be cured in such time,
shall not give within ten days such
assurance of cure as shall be
reasonably satisfactory to the Issuer);
(ii) a court having jurisdiction in the
premises shall enter a decree or order
for relief, and such decree or order
shall not have been vacated within 60
days, in respect of the Administrator
in any involuntary case under any
applicable bankruptcy, insolvency or
other similar law now or hereafter in
effect or appoint a receiver,
liquidator, assignee, custodian,
trustee, sequestrator or similar
official for the Administrator or any
substantial part of its property or
order the winding-up or liquidation of
its affairs; or
(iii) the Administrator shall commence a
voluntary case under any applicable
bankruptcy, insolvency or other similar
law now or hereafter in effect, shall
consent to the entry of an order for
relief in an involuntary case under any
such law, or shall consent to the
appointment of a receiver, liquidator,
assignee, trustee, custodian,
sequestrator or similar official for
the Administrator or any substantial
part of its property, shall consent to
the taking of possession by any such
official of any substantial part of its
property, shall make any general
assignment for the benefit of creditors
or shall fail generally to pay its
debts as they become due.
The Administrator agrees that if any of the events specified in clauses
(ii) or (iii) above shall occur, it shall give written notice thereof to the
Issuer and the Indenture Trustee within seven days after the occurrence of such
event.
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(d) No resignation or removal of the
Administrator pursuant to this Section shall
be effective until (i) a successor
Administrator shall have been appointed by
the Issuer and (ii) such successor
Administrator shall have agreed in writing
to be bound by the terms of this Agreement
in the same manner as the Administrator is
bound hereunder.
(e) The appointment of any successor
Administrator shall be effective only after
the satisfaction of the Rating Agency
Condition with respect to the proposed
appointment.
(f) Subject to Section 8(d) and 8(e), the
Administrator acknowledges that upon the
appointment of a Successor Servicer pursuant
to the Transfer and Servicing Agreement, the
Administrator shall immediately resign
(subject to Section 8(d) hereof).
SECTION 9. ACTION UPON TERMINATION, RESIGNATION OR REMOVAL. Promptly upon
the effective date of termination of this Agreement pursuant to Section 8 or the
resignation or removal of the Administrator pursuant to Section 8(a), (b), (c)
or (f) respectively, the Administrator shall be entitled to be paid all fees and
reimbursable expenses accruing to it to the date of such termination,
resignation or removal. The Administrator shall forthwith upon such termination
pursuant to Section 8 deliver to the Issuer all property and documents of or
relating to the Collateral then in the custody of the Administrator. In the
event of the resignation or removal of the Administrator pursuant to Section
(a), (b), (c) or (f), respectively, the Administrator shall cooperate with the
Issuer and take all reasonable steps requested to assist the Issuer in making an
orderly transfer of the duties of the Administrator.
SECTION 10. NOTICES. All notices, demands, certificates, requests and
communications hereunder ("notices") shall be in writing and shall be effective
(a) upon receipt when sent through the U.S. mails, registered or certified mail,
return receipt requested, postage prepaid, with such receipt to be effective the
date of delivery indicated on the return receipt, or (b) one Business Day after
delivery to an overnight courier, or (c) on the date personally delivered to an
Authorized Officer of the party to which sent, or
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(d) on the date transmitted by legible telecopier transmission with a
confirmation of receipt, in all cases addressed to the recipient as follows:
(i) If to the Administrator:
ORIX Credit Alliance, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Chief Financial Officer/Asset Securitizations
Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇
(ii) If to the Trust Depositor:
ORIX Credit Alliance Receivables Corporation III
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: President/Asset Securitizations
Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇
(iii) If to the Indenture Trustee:
▇▇▇▇▇▇ Trust and Savings Bank
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Indenture Trust Administration
Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇
(iv) If to the Issuer or the Owner Trustee:
The Bank of New York (Delaware)
▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇.▇. ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Corporate Trust Administration
Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
The Bank of New York
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
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Attention: Asset-Backed Finance Group
Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇
Each party hereto may, by notice given in accordance herewith to each of the
other parties hereto, designate any further or different address to which
subsequent notices shall be sent.
SECTION 11. AMENDMENTS. This Agreement may be amended from time to time by
a written amendment duly executed and delivered by the parties hereto, with the
written consent of the Owner Trustee but without the consent of the Noteholders
and the Certificateholders, for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of this Agreement or
of modifying in any manner the rights of the Noteholders or Certificateholders;
provided that such amendment will not, in the Opinion of Counsel satisfactory to
the Indenture Trustee, materially and adversely affect the interest of any
Noteholder or Certificateholder. This Agreement may also be amended by the
parties hereto with the written consent of the Owner Trustee and the Required
Holders for the purpose of adding any provisions to or changing in any manner or
eliminating any of the provisions of this Agreement or of modifying in any
manner the rights of Noteholders or the Certificateholders; provided, however,
that no such amendment may (i) increase or reduce in any manner the amount of,
or accelerate or delay the timing of, collections of payments on the Contracts
or distributions that are required to be made for the benefit of the Noteholders
or Certificateholders or (ii) reduce the aforesaid percentage of the holders of
Notes and Certificates which are required to consent to any such amendment,
without the consent of the Issuer and the holders of all outstanding Notes and
Certificates. Notwithstanding the foregoing, the Administrator may not amend
this Agreement without the permission of the Trust Depositor, which permission
shall not be unreasonably withheld.
SECTION 12. SUCCESSORS AND ASSIGNS. This Agreement may not be assigned by
the Administrator unless such assignment is previously consented to in writing
by the Issuer, the Indenture Trustee and the Owner Trustee and subject to the
satisfaction of the Rating Agency Condition in respect thereof. An assignment
with such consent and satisfaction, if accepted by the assignee, shall bind the
assignee hereunder in the same manner as the Administrator is bound hereunder.
Notwithstanding the foregoing, this Agreement may be assigned by the
Administrator without the consent of the Issuer, the Indenture Trustee or the
Owner Trustee to a corporation or other organization that is a successor (by
merger, consolidation or purchase of assets) to the Administrator; provided that
such successor organization executes and delivers to the Issuer, the Owner
Trustee and the Indenture Trustee an agreement, in form and substance reasonably
satisfactory to the Issuer, the Owner Trustee and the Indenture Trustee, in
which such corporation or other organization agrees to be bound hereunder by the
terms
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of said assignment in the same manner as the Administrator is bound hereunder.
Subject to the foregoing, this Agreement shall bind any successors or assigns of
the parties hereto.
SECTION 13. GOVERNING LAW, JURY WAIVER AND NO PETITION. (a) THIS AGREEMENT
SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, AND THE
OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN
ACCORDANCE WITH SUCH LAWS;
(b) EACH PARTY HERETO HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY
APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY
LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER OR IN CONNECTION WITH
THIS AGREEMENT. Each party hereto (i) certifies that no representative, agent or
attorney of any other party has represented, expressly or otherwise, that such
other party would not, in the event of litigation, seek to enforce the foregoing
waiver and (ii) acknowledges that it and the other parties hereto have been
induced to enter into this Agreement by, among other things, the mutual waivers
and certifications in this Section 13(b); and
(c) Each of the Administrator and the Indenture Trustee covenants and
agrees that, prior to the date that is one year and one day after the payment in
full of all amounts owing in respect of all outstanding Notes, it will not
institute against the Trust Depositor or the Trust, or join any other Person in
instituting against the Trust Depositor or the Trust, any bankruptcy,
reorganization, arrangement, insolvency or liquidation proceedings or other
similar proceedings under the laws of the United States or any state of the
United States, provided, however, that nothing herein shall prohibit the
Indenture Trustee from filing proofs of claim or otherwise participating in any
such proceedings instituted by any other person. This Section 13(c) will survive
the termination of this Agreement.
SECTION 14. HEADINGS. The section and subsection headings hereof have been
inserted for convenience of reference only and shall not be construed to affect
the meaning, construction or effect of this Agreement.
SECTION 15. COUNTERPARTS. This Agreement may be executed by facsimile
signature and in several counterparts, each of which shall be an original and
all of which shall constitute but one and the same agreement.
SECTION 16. SEVERABILITY. Any provision of this Agreement that is
prohibited or unenforceable in any jurisdiction shall be ineffective to the
extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof and
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any such prohibition or unenforceability in any jurisdiction shall not
invalidate or render unenforceable such provision in any other jurisdiction.
SECTION 17. NOT APPLICABLE TO OCAI IN OTHER CAPACITIES. Nothing in this
Agreement shall affect any obligation OCAI may have in any other capacity.
SECTION 18. LIMITATION OF LIABILITY OF OWNER TRUSTEE AND INDENTURE TRUSTEE.
(a) Notwithstanding anything contained herein to the contrary, this
instrument has been countersigned by The Bank of New York (Delaware) not in its
individual capacity but solely in its capacity as Owner Trustee of the Issuer
and in no event shall The Bank of New York (Delaware) in its individual capacity
or any beneficial owner of the Issuer have any liability for the
representations, warranties, covenants, agreements or other obligations of the
Issuer hereunder, as to all of which recourse shall be had solely to the assets
of the Issuer. For all purposes of this Agreement, in the performance of any
duties or obligations of the Issuer hereunder, the Owner Trustee shall be
subject to, and entitled to the benefits of, the terms and provisions of
Articles Six, Seven and Eight of the Trust Agreement.
(b) Notwithstanding anything contained herein to the contrary, this
Agreement has been countersigned by ▇▇▇▇▇▇ Trust and Savings Bank not in its
individual capacity but solely as Indenture Trustee and in no event shall ▇▇▇▇▇▇
Trust and Savings Bank have any liability for the representations, warranties,
covenants, agreements or other obligations of the Issuer hereunder or in any of
the certificates, notices or agreements delivered pursuant hereto, as to all of
which recourse shall be had solely to the assets of the Issuer.
SECTION 19. THIRD-PARTY BENEFICIARY. The Owner Trustee is a third-party
beneficiary to this Agreement and is entitled to the rights and benefits
hereunder and may enforce the provisions hereof as if it were a party hereto.
SECTION 20. SURVIVABILITY. The obligations of the Administrator described
in Section 1(a)(ii) hereof shall survive termination of this Agreement.
{this portion of page intentionally left blank}
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and delivered as of the day and year first above written.
ORIX CREDIT ALLIANCE RECEIVABLES
TRUST 2000-A
By: THE BANK OF NEW YORK (DELAWARE), not in its individual
capacity but solely as Owner Trustee
By:
---------------------------------------------------
Printed Name: ▇▇▇▇▇▇ Laser
-----------------------------
Title: Assistant Vice President
-----------------------------------
ORIX CREDIT ALLIANCE RECEIVABLES CORPORATION III, as Trust
Depositor
By:
---------------------------------------------------
Printed Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇.
-----------------------------
Title: President
------------------------------------
▇▇▇▇▇▇ TRUST AND SAVINGS BANK, not in its individual capacity
but solely as Indenture Trustee
By:
---------------------------------------------------
Printed Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-----------------------------
Title: Vice President
------------------------------------
ORIX CREDIT ALLIANCE, INC., as Administrator
By:
---------------------------------------------------
Printed Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇.
----------------------------
Title: Executive Vice President
------------------------------------
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EXHIBIT A
LIMITED POWER OF ATTORNEY
State of New York )
) SS.
County of New York )
KNOW ALL PERSONS BY THESE PRESENTS, that The Bank of New York (Delaware), a
Delaware state chartered bank (the "Owner Trustee"), by and through its duly
elected and authorized officer, _____________________, a _____________, on
behalf of ORIX Credit Alliance Receivables Trust 2000-A (the "Trust") as Issuer
under the Administration Agreement, dated as of February , 2000 (the
"Administration Agreement"), among the Trust, ORIX Credit Alliance Receivables
Corporation III, ▇▇▇▇▇▇ Trust and Savings Bank, as Indenture Trustee, and ORIX
Credit Alliance, Inc., as Administrator, does hereby nominate, constitute and
appoint ORIX Credit Alliance, Inc., a New York corporation, each of its officers
from time to time and each of its employees authorized by it from time to time
to act hereunder, jointly and each of them severally, together or acting alone,
its true and lawful attorney-in-fact, for the Issuer in their name, place and
▇▇▇▇▇, in the sole discretion of such attorney-in-fact, to perform such
calculations and prepare or cause the preparation by other appropriate persons
of, and to execute on behalf of the Issuer, all such documents, reports,
filings, instruments, certificates and opinions that the Issuer or the Owner
Trustee is required to prepare, file or deliver pursuant to the Administration
Agreement, and to take any and all other action, as such attorney-in-fact may
deem necessary or desirable in accordance with the directions of the Owner
Trustee and in connection with its duties as Administrator or successor
Administrator under the Administration Agreement. Capitalized terms used herein
that are not otherwise defined shall have the meanings ascribed thereto in the
Administration Agreement.
The Owner Trustee on behalf of the Trust hereby ratifies and confirms the
execution, delivery and performance (whether before or after the date hereof) of
the above-mentioned documents, reports, filings, instruments, certificates and
opinions, by the attorney-in-fact and all that the attorney-in-fact shall
lawfully do or cause to be done by virtue hereof.
The Owner Trustee on behalf of the Trust hereby agrees that no person or
other entity dealing with the attorney-in-fact shall be bound to inquire into
such attorney-in-fact's power and authority hereunder and any such person or
entity shall be fully protected in relying on such power of authority.
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21
This Limited Power of Attorney may not be assigned without the prior
written consent of the Owner Trustee. It is effective immediately and will
continue until it is revoked.
This Limited Power of Attorney shall be governed and construed in
accordance with the laws of the State of Delaware.
Executed as of this day of February, 2000.
THE BANK OF NEW YORK (DELAWARE), not in its individual
capacity but solely as Owner Trustee,
By:
-------------------------------------------
Printed Name: ▇▇▇▇▇▇ Laser
----------------------------
Title: Assistant Vice President
-----------------------------------
A-2
22
CERTIFICATE OF ACKNOWLEDGMENT OF
NOTARY PUBLIC
State of New York )
) SS.
County of New York )
On February , 2000 before me,__________________________________
{insert date} ________________
{ } personally known to me, or
{ } proved to me on the basis of satisfactory evidence to
be the person(s) whose name(s) is/are
subscribed to the within instrument and acknowledged to me that he/she/they
executed the same in his/her/their authorized capacity(ties), and that by
his/her/their signature(s) on the instrument the person(s), or the entity upon
behalf of which person(s) acted, executed the instrument.
WITNESS my hand and official seal.
Signature {SEAL}
--------------------------------------
A-3
